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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

Katherine Bradacs and Tracie Goodwin, ) Civil Action No. 3:13-cv-02351-JMC

)

Plaintiffs, )

)v. )

) DEFENDANTS MOTION FOR

Nimrata (Nikki) Randhawa Haley, in her ) JUDGMENT ON THE PLEADINGSofficial capacity as Governor of South )

Carolina; Alan M. Wilson, in his official )

Capacity as Attorney General, )

)Defendants. )

_______________________________ )

The Defendants move for judgment on the pleadings herein pursuant to Rule 12(c),

FRCP, for the reasons set forth in the attached Memorandum in Support of Motion for Judgment

on the Pleadings which is incorporated by reference. Those grounds include, but are not limited

to, federalism, Eleventh Immunity, lack of standing to sue the named Defendants, the rational

bases for the challenged provisions and the inapplicability of the Full Faith and Credit Clause.

ALAN WILSONAttorney General

Federal ID No.10457

ROBERT D. COOK

Solicitor General

Federal ID No. 285Email:[email protected]

[Signature block continues next page]

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/s/ J. Emory Smith, Jr.

J. EMORY SMITH, JR.

Deputy Solicitor GeneralFederal ID No. 3908

Email:[email protected]

IAN P. WESCHLER

Assistant Attorney General

Federal ID No. 11744

BRENDAN J. MCDONALD

Assistant Attorney General

Federal ID No. 10659

Post Office Box 11549

Columbia, South Carolina 29211

Phone: (803) 734-3680Fax: (803) 734-3677

Counsel for DefendantsOctober 23, 2014 Governor and Attorney General

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

Katherine Bradacs and Tracie Goodwin, ) Civil Action No. 3:13-cv-02351-JMC

)

Plaintiffs, )

)v. ) MEMORANDUM IN SUPPORT OF

) DEFENDANTS MOTION FOR

Nimrata (Nikki) Randhawa Haley, in her ) JUDGMENT ON THE PLEADINGSofficial capacity as Governor of South )

Carolina; Alan M. Wilson, in his official )

Capacity as Attorney General, )

)Defendants. )

_____________________________ ______ )

This suit has been brought in the wrong Court against the wrong parties. These grounds

were not considered in the Fourth Circuit Court of Appeals same-sex marriage decision, and they

are dispositive of this case. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014).

Plaintiffs, who are both female, allege that they were married in the District of Columbia

in 2012, that their marriage is recognized under DC law and that they have two children.

Plaintiffs seek recognition of that marriage by the State of South Carolina and possibly argue that

they are entitled to marry in this State. State law does not allow or recognize same-sex

marriages, and Plaintiffs challenge two of those provisions. S.C. Code Ann 20-1-15; S.C.

Const art. XVII, 151 Therefore, this case presents the question of whether those laws are valid,

1Section 20-1-15 provides that [a] marriage between persons of the same sex is void ab initio

and against the public policy of this State. See also, 20-1-10 (persons who may marry same

sex couples excluded) not challenged in this action.

In March, 2007, S.C. Const art. XVII, 15 became effective and provided as follows:

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but also whether this suit should be dismissed due to federalism, Eleventh Amendment Immunity

and lack of standing to sue the named defendants. These laws are valid, and this challenge to

them is not properly before this Court.

The issue of same-sex marriage has proceeded through the Federal Courts in other states

at an unprecedented pace. Centuries of precedent have been swept away in other jurisdictions in

the space of only two or three years. Never have the Courts made judgments so quickly about an

issue that had received little attention before now. But the legal proceedings are not over. The

United States Supreme Court has not weighed in. Many Courts of Appeals have not decided the

cases before them or are still in process in the District Courts. Although a 2-1 Panel of the Court

of Appeals for the Fourth Circuit has overturned Virginias same-sex marriage ban, that case did

not consider issues that are dispositive of the instant case. Bostic. The defenses named above

and discussed, infra, take this case outside of theBosticprecedent and warrant judgment for the

Defendants.

I

PRINCIPLES OF FEDERALISM DICTATE THAT

THIS ACTION IS IMPROPERLY BROUGHT IN FEDERAL COURT

The Court should dismiss this action, based upon overriding principles of federalism.

Because this case seeks to decide the core question of two peoples marital status, it belongs in

A marriage between one man and one woman is the only lawful domestic union

that shall be valid or recognized in this State. This State and its politicalsubdivisions shall not create a legal status, right, or claim respecting any other

domestic union, however denominated. This State and its political subdivisions

shall not recognize or give effect to a legal status, right, or claim created byanother jurisdiction respecting any other domestic union, however denominated.

Nothing in this section shall impair any right or benefit extended by the State or

its political subdivisions other than a right or benefit arising from a domestic

union that is not valid or recognized in this State. This section shall not prohibit orlimit parties, other than the State or its political subdivisions, from entering into

contracts or other legal instruments.

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state court, rather than in federal court. As only recently stated in United States v. Windsor, 133

S.Ct. 2675, 2691 (2013), the federal courts, as a general rule, do not adjudicate marital status

even where there might otherwise be a basis for federal jurisdiction.

For over a century, the United States Supreme Court, as well as lower federal courts,

have concluded that actions concerning domestic relations, such as those deciding the status of

marriage, are not properly brought in Federal Court but are conclusively within the authority of

state courts. Since the federal Constitutions adoption, such actions have been deemed outside

the province of federal law and equity courts, belonging instead to the state ecclesiastical courts.

See State of Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 384 (1930). Of course, in South

Carolina, the successor to the ecclesiastical court is the probate court. Thus, based upon

compelling interests of federalism, this case should be dismissed as improperly brought here,

rather than in the courts of South Carolina.

As Judge Posner recognized in Jones v. Brennan, 465 F.3d 304 (7th

Cir. 2006), the

domestic relations exception applies equally to federal questions. Such exception was always

deemed applicable to diversity cases because domestic relations adjudications do not involve law

or equity dispositions. Judge Posner points out that the statute relating to federal questions uses

the same common law or inequity language as the diversity statute. Thus, as he concludes, the

domestic relations exception was intended to apply to federal question cases too. 465 F.3d at

307. While Judge Posner relied upon a jurisdictional analysis, other courts have looked to the

foundations of federalismparticularly justiciability and abstentionin concluding that domestic

relations issues are more properly a matter for state courts to decide, even where federal

questions are involved. Harbach, Is the Family a Federal Question, 66Washington and Lee L.

Rev., 131, 165-175 (2009).

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Indeed, Elk Grove United School Dist. v. Newdow, 542 U.S. 1, 17 (2004) is strongly

supportive of this federalism analysis. Newdowwas a case clearly involving a federal question

a claim that recitation of the Pledge of Allegiance violated the Establishment Clause with respect

to Petitioners daughter, by using the phrase under God. The Supreme Court noted that

Newdowsparental statuswas defined by California domestic relations law. 542 U.S. at 16.

(emphasis added). Thus, the Court concluded that [w]hen the hard questions of domestic

relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand

rather than to reach out to resolve a weighty question of federal constitutional law. 542 U.S. at

17 (emphasis added). See alsoAnkenbrandt v. Richards, 504 U.S. 609, 716 (Blackman, J.

concurring) [The core of domestic relations adjudication involves declarations of status, e.g.

marriage, annulment, divorce, custody and paternity.].

Justice Stevens, writing for the Court in Newdow, recognized there are certain occasions

when a federal court absolutely must intercedewith respect to domestic relations issues, such as

those involving racial classifications. However, Newdow noted that such circumstances are

indeed extraordinary and rare. According to Justice Stevens,

. . . [w]hile rare instances arise in which it is necessary to answer a

substantial federal question that transcends or exists apart from the family

law issue, see e.g. Palmore v. Sidoti, 446 U.S. 429, 432-434 . . . (1984), ingeneral it is appropriate for the federal courts to leave delicate issues of

domestic relations to the state courts.

542 U.S. at 13 (emphasis added).

As the Court also noted in Palmore v. Sidoti, racial classifications are subject to the

most exacting scrutiny . . . and require justification in the form of a compelling state interest.

By contrast, the Court has previously concluded that discrimination, based upon ones sexual

orientation, must bear a rational relationship to a legitimate government purpose. Romer v.

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Evans, 517 U.S. 620, 635 (1996). Romer employed a rational basis test in striking down an

amendment to the Colorado Constitution which permitted discrimination based upon ones

sexual orientation. SeealsoThomasson v. Perry, 80 F.3d 915 (4th

Cir. 1996) [federal policy of

Dont Ask, Dont Tell, does not create a suspect class, and is thus subject to rational basis

scrutiny and does not burden a fundamental right]. Thus, in this case, involving alleged

discrimination based upon sexual orientation, the general rule enunciated inNewdow that the

federal courts leave delicate issues of domestic relations to the state courts -- is controlling.

Accordingly, asNewdowmandates, this case should be dismissed on grounds of federalism.

Lower federal courts have appliedNewdowto conclude that these courts should not hear

a case, despite federal claims. In Smith v. Huckabee, 154 F.Appx. 552, 555 (8th

Cir. 2005), the

Court dismissed a 1983 suit, citingNewdow. InA.N. and D.N. v. Williams, 2005 WL 3003730

(M.D. Fla. 2005), the Court noted it should defer to the state courts in matters of family law.

And, in Whiteside v. Neb. State Health and Human Services, 2007 WL 2123754 (D. Neb. 2007),

the Court dismissed a 1983 action pursuant to the domestic relations exception, based upon

Newdow.

The recent Supreme Court decision, United States v. Windsor, suprais fully supportive of

Newdows analysis. In Windsor, New York recognized same-sex marriages performed

elsewhere, as well as those in that state. However, the federal Defense of Marriage Act

(DOMA) required that, for federal purposes, marriage means only a legal union between

one man and one woman as husband and wife. . . . In the words of the Supreme Court, [w]hat

the State of New York treats as alike the federal law deems unlike by a law designed to injure the

same class the State seeks to protect. As a result, DOMA, because of its reach and extent,

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departs from [the] . . . history and tradition [of the federal government] of reliance on state law to

define marriage. 133 S.Ct. at 2392.

The WindsorCourt, sensitive to federalism concerns, reviewed in detail the longstanding

recognition by the Court that, except for deprivation of constitutional rights, such as involving

racial discrimination, domestic relations is an area that has long been regarded as a virtually

exclusive province of the States. Id. at 2691 (quoting Sosna v. Iowa, 419 U.S. 393, 404

(1975)). As explained by the Supreme Court,

[t]he definition of marriage is the foundation of the States broader authority

to regulate the subject of domestic relations with respect to the [p]rotection

of offspring, of property interests, and the enforcement of maritalresponsibilities. [citing Williams v. North Carolina, 317 U.S. 287, 298

(1942)]. . . . [T]he states, at the time of the adoption of the Constitution,

possessed full power over the subject of marriage and divorce . . . [and] theConstitution delegated no authority to the Government of the United States

on the subject of marriage and divorce. Haddock v. Haddock, 201 U.S.

562, 575, 26 S.Ct. 525, 50 L.Ed. 867 (1906); see also In re Burrus, 136 U.S.586, 593-594, 10 S.Ct. 850, 34 L.Ed. 500 (1890) (The whole subject of

domestic relations of husband and wife, parent and child, belongs to the

laws of the States and not to the laws of the United States). . . .

The significance of state responsibilities for the definition and regulation of

marriage dates to the Nations beginning; for when the Constitution wasadopted for common understanding was that the domestic relations of

husband and wife and parent and child were matters reserved to the States.

Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-384, 50 S.Ct. 154, 74

L.Ed. 489 (1930).

Id.

In short, because DOMA -- a federal act -- interfered with New Yorks determination as

to what constituted a valid marriage, it was necessary for the Supreme Court to step in. As one

commentator has noted, DOMA was an unusual federal intrusion into an issue previously

reserved for the states . . . [i]n fact, before DOMAs enactment in 1996, the federal government

had by history, and tradition relied on the states determinations of what constituted marriage.

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Mir, Windsor and the Discontents . . .,, 64 Duke Law Journal, 53, 58 (2014). According to

Justice Kennedy,

[t]he responsibility of the States for the regulation of domestic relations is

an important indicator of the substantial societal impact the Statesclassifications have in the daily lives and customs of its people. DOMAs

unusual deviation from the usual tradition of recognizing and accepting

state definitions of marriage here operates to deprive same-sex couples of

the benefits and responsibilities that come with the federal recognition oftheir marriages. This is strong evidence of a law having the purpose and

effect of disapproval of that class. The avowed purpose and practical effect

of the law here in question are to impose a disadvantage, a separate status,and so a stigma upon all who enter into same-sex marriages made lawful by

the unquestioned authority of the States.

Id. at 2693 (emphasis added).

In other words, Windsor involved interference [by the federal government] with

traditional state prerogatives, i.e. the status of the marriage relationship. Kitchen v. Herbert,

755 F.3d 1193, 1236 (10th

Cir. 2014). As Chief Justice Roberts observed in his Windsordissent,

[t]he dominant theme of the majority opinion is that the Federal

Governments intrusion into an area central to state domestic relations law,applicable to its residents and citizens is sufficiently unusual to set off

alarm bells. . . . [I]t is undeniable that [the majority opinion] . . . is based on

federalism.

133 S.Ct. at 2697 (Roberts, C.J. dissenting). The Chief Justice concluded that the Courts

opinion in Windsor is based upon the historic and essential authority to define the marital

relation, allowing states to continue to utilize the traditional definition of marriage. Id. at

2696.

Scholars agree with Chief Justice Roberts reading that Windsoris based primarily upon

federalism. As has been stated, . . . Justice Anthony Kennedys majority opinion in Windsor

left little doubt that federalism principles were crucial to the results. DOMA was

unconstitutional not simply because it discriminated against same-sex couples who were legally

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married in New York, butbecause it intruded on the states sovereign authority to define

marriage for themselves. Young and Blendel, Federalism, Liberty, and Equality in United

States v. Windsor, 2013 Cato Supreme Court Review, 117, 118 (2013-14). As one scholar has

correctly observed, as a federalism-in-family law decision, Windsorcan be linked with a long

line of decisions stressing federal deference to state authority to regulate family matters . . . such

as Elk Grove Unified School District v. Newdow, [supra] . . . United States v. Morrison, [529

U.S. 598 (2000)] . . . Jones v. United States, [529 U.S. 848 (2000)] . . . United States v. Lopez,

[514 U.S. 549 (1995)] . . . and United States v. Yazell, [382 U.S. 341 (1966)]. Wardle,

Reflections on Equality in Family Law, 1385 Mich. St. L. Rev. 1422 (2013).

Accordingly, it is important to note that only last year, the Court reaffirmed the principle

that individual states should determine the status of a marriage, whether that marriage consists of

the traditional relationship, or one which includes the legal union between the same sexes. In

South Carolina, by adopting Art. XVII, 15, voters supported the traditional definition of

marriage by almost 80%, reinforcing the right of citizens to debate so they can learn and decide

and then, through the political process act in concert. . . . SeeSchuette v. Coalition to Defend

Affirmative Action, 134 S.Ct. 1623, 1636-7 (2014). Such is the province of the States, rather than

the federal courts. According to Newdow, as well as Windsor, federal courts must honor the

States sovereign right in this area, notwithstanding that a constitutional challenge may be

involved. The state courts may and are required to hear such challenges. Huffman v. Pursue,

Ltd., 420 U.S. 592, 611 (1975) [state judges are bound by federal law and must remain faithful

to their constitutional responsibilities under Art. VI of the federal Constitution.]; seealsoIn re

Estate of Mercer v. Bryant, 288 S.C. 313, 318, 342 S.E.2d 591, 593 (1986) [We hold that S.C.

Code Ann. 21-7-480 (1976) is unconstitutional in its entirety because it violates the equal

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protection clause of the United States Constitution.]. Thus, deference to the courts of South

Carolina in this important area of domestic relations does not mean that the state courts will not

consider nor adjudicate the important constitutional claims raised by this case. To the contrary,

our South Carolina courts will certainly do so.

Windsorsreliance upon federalism principles is incorrectly distinguished by the Fourth

circuit in Bostic v. Schaefer, 760 F.3d 352, 378 (4th

Cir. 2014). Contending that Windsor is

actually detrimental to any federalism argument, the Fourth Circuit quoted from Windsor that

state laws defining and regulating marriage, of course, must respect the constitutional rights of

persons. . . (citing Loving v. Virginia, 388 U.S. 1 (1967)). Loving, however, involved a

criminalization of Virginias anti-miscegenation laws, based upon a racial classification, not an

effort to define marriage in its traditional form between a man and a woman. Under the Fourth

Circuits analysis, principles of federalism could never be applied by federal courts if

constitutional rights are alleged. However, the Supreme Court, through Justice Black, has

consistently recognized that principles of federalism do,

. . . not mean blind deference to States Rights any more than it meanscentralization of control over every important issue in our National

Government and its courts. . . . What the concept does represent is a system

in which there is sensitivity to the legitimate interests of both State and

National Governments, and in which the National Government, anxiousthough it may be to vindicate and protect federal rights and federal interests,

always endeavors to do so in ways that will not unduly interfere with the

legitimate activities of states.

Younger v. Harris, 401 U.S. 37, 44 (1971). As the Court has emphasized, state courts have the

solemn responsibility equally with the federal courts to safeguard constitutional rights. . . .

Trainor v. Hernandez, 431 U.S. 434, 443, (quoting Steffel v. Thompson, 415 U.S. 452, 460-1

(1974)).

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The Fourth Circuit has applied this domestic relations exception to a constitutional

claim, based upon alleged sex discrimination. In Wilkins v. Rogers, 581 F.2d 399 (4th

Cir. 1978),

the Court refrained from ruling upon the constitutionality of a state statutory scheme eliminating

the wifes right to dower if the wife deserted her husband. Such statutes were attacked by

invoking federal question jurisdiction, as well as diversity. However, the Fourth Circuit found

that federal courts may not hear such claims:

[i]t has long been held that the whole subject of domestic relations belongsto the laws of the state and not to the laws of the United States. Ex Parte

Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 34 L.Ed. 500 (1890). Thus,

original jurisdiction of suits primarily involving domestic relations is

improper, notwithstanding that the parties are residents of different states.E.g. Albanese v. Richter, 161 F.2d 688 (3d 1947), cert. denied, 332 U.S.

782, 68 S.Ct. 49, 92 L.Ed. 365 (1947). And such disputes do not present a

federal question, notwithstanding allegations of sexual discrimination. . . .Therefore, original jurisdiction over Wilkins claims does not lie.

581 F.2d at 403-404. Butsee, U.S. v. Johnson, 114 F.3d at 476 (4th

Circ. 1997).

In short, this Court should stay its hand in this case and defer to the state courts based

uponNewdowand Windsor, as well as Wilkins v. Rogers. The issue here, at its core, is the status

of marriage. Federal courts are ill-equipped to address these kinds of domestic relations

questions. Art. XVII, 15 has never been interpreted by the courts of South Carolina. Rather

than a rush to judgment, this case should be decided in the proper state court the court which

has traditionally handled questions relating to marriage.

This analysis is fully supported by the Supreme Courts decision in Baker v. Nelson, 409

U.S. 810 (1972), which dismissed virtually identical issues to the claims now pending before this

Court for want of a substantial federal question. For the reasons that follow, Baker remains

binding precedent, and fully buttresses the foregoing authorities applying principles of

federalism by applying the domestic relations exception.

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InBaker, two men sought a marriage license. 191 N.W.2d 185, (Minn. 1971). However,

Minnesota law provided that marriage would be recognized only between a man and a woman.

The Minnesota statute was challenged on the basis of the Due Process and Equal Protection

Clauses, as well as allegedly offending the First, Eighth and Ninth Amendments. The Minnesota

Supreme Court stated that [t]hese constitutional challenges have in common the assertion that

the right to marry without regard to the sex of the parties is a fundamental right of all parties and

that restricting marriage to only couples of the opposite sex is irrational and invidiously

discriminatory. 191 N.W.2d at 186.

The Court reviewed Supreme Court decisions, particularly Skinner v. Oklahoma, 316

U.S. 935 (1942), Griswold v. Connecticut, 381 U.S. 479 (1965), and Loving v. Virginia, supra.

According to the Court,

Loving does indicate that not all restrictions upon the right to marry arebeyond the reach of the Fourteenth Amendment. But in common sense and

in a constitutional sense, there is a clear distinction between a marital

restriction based merely upon race and one based upon the fundamentaldifference in sex.

191 N.W.2d at 187.

It is important to note that the Minnesota Supreme Court specifically rejected all of

Plaintiffs constitutional challenges. The Court found no Due Process violation, relying

principally upon Skinner. With respect to the Equal Protection claim, the Court concluded that

[t]he equal protection clause of the Fourteenth Amendment, like the due process clause, is not

offended by the states classification of persons authorized to marry. There is no irrational or

invidious discrimination. Id. at 187.

Plaintiffs then appealed the Minnesota Supreme Courts decision to the United States

Supreme Court. The Plaintiffs Jurisdictional Statement raised three separate questions to the

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Supreme Court: (1) whether the States refusal to sanctify appellants marriage [between the

same sexes] deprives appellants of their liberty to marry and of their property without due

process of law under the Fourteenth Amendment; (2) whether the States refusal, pursuant to

Minnesota marriage statutes, to sanctify appellants [same-sex] marriage because both are of the

male sex violates their rights under the equal protection clause of the Fourteenth Amendment;

and (3) whether the States refusal to sanctify appellants [same-sex] marriage deprives

appellants of their right to privacy under the Ninth and Fourteenth Amendments. Baker,

Jurisdictional Statement No. 71-1027, p. 3 (Feb. 11, 1971). Importantly, the Supreme Court

dismissed [the appeal] for want of a substantial federal question. Baker v. Nelson, 409 U.S. at

810.

The Supreme Courts summary dismissal represents a ruling on the merits and is binding

upon this Court and all lower federal courts. In Hicks v. Miranda, 422 U.S. 332 (1975), the

Supreme Court addressed the effects of a dismissal by that Court for lack of a substantial federal

question. Among other questions raised inHickswas the issue of whether a summary dismissal,

for want of a substantial federal question, was binding on the District Court and required that

court to sustain the California obscenity statute and to dismiss the case. 422 U.S. at 343. The

Supreme Court concluded that such summary dismissal was indeed binding. According to the

HicksCourt,

[w]e agree with appellants that the District Court was in error in holding

that it would disregard the decision in Miller II. That case was an appeal

from a decision by a state court upholding a state statute against federalconstitutional attack. A federal constitutional issue was properly presented,

it was within our appellate jurisdiction . . . and we had no discretion to

refuse adjudication of the case on its merits as would have been true had the

case been brought here under our certiorari jurisdiction. We are notobligated to grant the case plenary jurisdiction, and we did not; but we were

required to deal with its merits. We did so by concluding that the appeal

should be dismissed because the constitutional challenge to the California

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statute was not a substantial one. The three judge court was not free to

disregard this pronouncement.

As Mr. Justice Brennan once observed, (v)otes to affirm summarily, and to

dismiss for want of a substantial federal question, it hardly needs comment,

are votes, on the merits of a case. . . .; [citation omitted]. The District Courtshould have followed the Second Circuits advice . . . that unless and until

the Supreme Court should instruct otherwise, inferior courts had best adhere

to the view that if a court has branded a question as insubstantial, it remains

so except when doctrinal developments indicate otherwise; and later inDoe v. Hodgson, 478 F.2d 537 . . . that the lower courts are bound by

summary decisions by this Court until such time as Court informs (them)

that they are not.

422 U.S. at 343-345.

Moreover, the Court has recognized that a summary dismissal without doubt reject[s]

the specific challenges presented in the statement of jurisdiction and prevent[s] lower courts

from coming to opposite conclusions [1] on the precise issues presented and [2] necessarily

decided by those actions. Mandel v. Bradley, 432 U.S. 173, 176 (1977). The lower court must

determine the precise legal questions and facts presented in the jurisdictional statement.

Windsor v. U.S., 833 F. Supp.2d 394, 399 (S.D.N.Y. 2012).

The Fourth Circuit has also recognized the binding effect of summary dismissals by the

Supreme Court. InHogge v. Johnson, 526 F.2d 833 (4th

Circ. 1975), the Fourth Circuit said this:

. . . the United States Supreme Court has spoken to the question among thecircuits with respect to the meaning to be accorded to the dismissal for want

of a substantial federal question. Such is a decision on the merits binding

upon the inferior federal courts. It is stare decisis on issues properlypresented to the Supreme Court and declared by that court to be without

substance. Hicks v. Miranda, 422 U.S. 332. (1975).

The HoggeCourt then proceeded to examine the issues presented to the Supreme Court which

resulted in the summary dismissal. The Court concluded that the summary dismissal of the

appeal in Kisley [187 S.E.2d 168 (1972)] is a perfectly clear precedent that is binding upon us.

526 F.2d at 835. SeealsoIdaho Assoc. of Naturopathic Physicians, Inc. v. U.S. Food and Drug.

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Adm., 582 F.2d 849, 853-854 (4th

Circ. 1978) [In light of the decisions of the Supreme Court

that we have reviewed [summary dispositions], we find that the naturopaths basic claim has

been firmly, repeatedly, and authoritatively rejected. Because we discern nothing in dictating that

their position, once labeled insubstantial, should now be considered otherwise, we affirm the

judgments of the district court].

However, with respect to the binding force of Baker, the Fourth Circuit, in Bostic v.

Schaefer, supratook it upon itself to disregard its own precedents, as well as the directive of the

Supreme Court inHicks v. Miranda, supra,and other cases. The Fourth Circuit panel assumed

the role reserved to the Supreme Court when it cited Windsor, and noted that Windsordid not

discussBakerin its opinion or during oral argument. 760 F.3d at 374. Of course, as discussed

above, Windsorwas not about the merits of the same-sex issue, but concerned the right of the

individual state to determine the status of marriage without federal interference.

Moreover, the Fourth Circuit relied upon an off-hand remark by Justice Ginsberg in the

oral argument in Hollingsworth v. Perry, ___ U.S. ____, 133 S.Ct. 2652 (2014), a case which

was resolved based not upon the merits of the same-sex marriage issue, but upon standing. See

760 F.3d, Id. at n. 5. Then, theBosticCourt, while acknowledging that Baker addressed the

precise issues before it, 760 F.3d at 373, proceeded to review the Supreme Courts sex

discrimination cases sinceBaker, concluding that

[i]n light of the Supreme Courts apparent abandonment of Baker and the

significant doctrinal developments that occurred after the Court issued its

summary dismissal in that case, we decline to view Baker as bindingprecedent and proceed to the meat of the opponents Fourteenth

Amendment arguments.

760 F.3d at 375.

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However, as discussed, the Supreme Court recognized in Hicks and other cases that a

Circuit Court of Appeals or a District Court may not make such an assessment regarding the

Supreme Courts doctrinal developments. Such is a matter for the Supreme Court, rather than

lower federal courts, to determine. As the Supreme Court warned inAgostini v. Felton, 521 U.S.

203 (1997),

[w]e do not acknowledge, and we do not hold, that other courts should

conclude our more recent cases have, by implication, overruled an earlier

precedent. We reaffirm that [i]f a precedent of this Court has directapplication in a case, yet appears to rest on reasons rejected in some other

line of decisions, the Court of Appeals should follow the case which

directly controls, leaving to this Court the prerogative of overruling its own

decisions. Rodriguez de Quijas [490 U.S. 477], supra at 484. . . (1989)].

521 U.S. at 237.

In the context of considering the question of same-sex marriage, unlike Bostic, a number

of courts have concluded that Baker v. Nelsonis binding upon them. SeeMcConnell v. Nooner,

547 F.2d 54, 56 (8th

Circ. 1976) [The District Court dismissed this action on the basis that

Baker v. Nelson . . . is dispositive of the issues raised therein. We agree.]; Wilson v. Ake, 354

F.Supp. 2d 1298, 1304-1305 (M.D. Fla. 2005) [Although Baker v. Nelson is over thirty (30)

years old, the decision addressed the same issues presented in this action, and this Court is bound

to follow the Supreme Courts decision.];Anderson v. King County, 138 P.3d 963 (Wash. 2006)

(en banc) (Alexander, C.J., concurring) [referencing Baker, and noting that the Supreme Court

dismissed the appeal for want of a substantial federal question: Thus, the same-sex union as a

constitutional right argument was so frivolous as to merit dismissal without further argument by

the Supreme Court. A similar result is required today.]; Donaldson v. State of Montana, 292

P.3d 364, 371, n. 5 [referencing cases deeming Baker as binding]; Morrison v. Sadler, 821

N.E.2d 15, 19 (Ind. App. 2005) [There is binding United States Supreme Court precedent that

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state bans on same-sex marriage do not violate the United States Constitution.];Lockyer v. City

and County of San Francisco, 95 P.3d 459, 503 (Cal. 2004) (Dennard, J., concurring and

dissenting) [Indeed there is a decision of the United States Supreme Court, binding on all other

courts and public officials that a state law restricting marriage to opposite-sex couples does not

violate the federal Constitutions guarantees of equal protection and due process of law.].

Only this week, the United States Federal District Court for the District of Puerto Rico

has determined that Baker is binding in this same context. In Conde-Vidal v. Garcia-Padilla,

No. 3:14-cv-01253PG (Oct. 21, 2014), the Court concluded that . . . plaintiffs constitutional

claim challenging the Puerto Rico Civil Codes recognition of opposite-gender marriage fail to

present a substantial federal question, and this Court must dismiss them. Op. at 11(Attachment

A). According to the Court:

[t]he First Circuit expressly acknowledged as much two years agothat Bakerremains binding precedent unless repudiated by subsequent Supreme Court

precedent. Massachusetts v. U.S. Dept. of Health and Human Services, 682 F.3d

1, 8 (1stCir. 2012). According to the First Circuit,Bakerpresents the adoption of

arguments that presume or rest on a constitutional right to same-sex marriage.

Id.at 12.

Indeed, in oral argument in Hollingsworth v. Perry, supra, Justice Scalia recognized

Baker v. Nelsonas a binding decision on the merits. He asked attorney Ted Olson the following:

Im curious when did it become unconstitutional to exclude [gay] . . .

couples from marriage? 1791, 1868, when the Fourteenth Amendment wasadopted? . . . [s]ome time after Baker [v. Nelson was decided in 1972],

where we said it didnt even raise a substantial federal question? When

when when did the law become this?

Transcript of Oral Argument, at 38,Hollingsworth v. Perry, 133 S.Ct. 2652 (2013) (No. 12-144)

(quoting Justice Scalia). Thus, contrary to the Fourth Circuits disregard ofBakerinBostic, at

least one member of the Supreme Court does not appear to believe that Baker has been

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abandoned by doctrinal developments. This resolution as to the continuing viability of

Baker as not raising a substantial federal question is for the Supreme Court, not the Fourth

Circuit nor this Court to determine.

Thus, the refusal of the Fourth Circuit in Bostic, to follow the directive of the Supreme

Court inBaker, based upon its own assessment of Supreme Court precedent, is contrary toHicks,

Agostini, and even the Fourth Circuits own cases. The issue of bans upon same-sex marriage

has not yet been addressed by the Supreme Court except in Baker v. Nelsons dismissal for want

of a substantial federal question. All of the issues including Plaintiffs constitutional claims here,

were addressed by the Minnesota Supreme Court, were raised in the Baker Jurisdictional

Statement to the Supreme Court, and were thus resolved in Bakerssummary disposition. The

impact of Loving v. Virginia, supra, upon the validity of same-sex marriage was specifically

raised to the Supreme Court, as were the Equal Protection and Due Process claims. The Fourth

Circuit panel was not free to disregardBaker, based upon its perception thatBakerwas outdated

or not in step with subsequent precedent. Agostini, supra. Bakerwas binding upon the Fourth

Circuit and this Court as well. Thus, Baker is entirely consistent with the recognition of the

long-standing domestic relations exception and the principles of federalism applied inNewdow

and Windsor.

Regardless of Bakers continuing viability, however, the overriding principles of

federalism, discussed above, require dismissal of this case. The core question in this case is the

status of a marriage. BothNewdowand Windsorstrongly militate in favor of this matter being

decided in the state courts, rather than this Court. Newdowand Windsorreinforce the principle

that domestic relations -- here the core determination of the status of marriage remains

within the province of the States, rather than with the federal courts. As Newdowemphasizes,

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the prudent course is for the federal court to stay its hand rather than to reach out to resolve a

weighty question of federal constitutional law. 542 U.S. at 17. And, as Windsorstresses, [t]he

significance of state responsibilities for the definition and regulation of marriage dates to the

Nations beginning. 133 S.Ct. at 2691. According to the Supreme Court in Windsor, [t]he

definition of marriage is the foundation of the States broader authority to regulate the subject of

domestic relations with respect to the [p]rotection of offspring, property interests and the

enforcement of marital responsibilities. 133 S.Ct. at 2691. Windsorwas based upon federal

interference with New Yorks sovereign determination of the definition of marriage in that State.

Based upon these authorities, the Complaint should be dismissed. As the Court in

Newdow well summarized, [d]omestic relations are preeminently matters of state law. 542

U.S. at 12 (quotingMansell v. Mansell, 490 U.S. 581, 587 (1989)).

II

PLAINTIFFS HAVE SUED THE WRONG PARTIES

A

The Eleventh Amendment Bars this Suit Against These Defendants

Suit is barred against the defendants under the Eleventh Amendment because they lack

specific enforcement authority regarding South Carolinas same-sex marriage provisions. As

stated inMcBurney v. Cuccinelli,616 F.3d 393, 399 (4th Cir. 2010):

The Eleventh Amendment provides that [t]he Judicial power of the United States

shall not be construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of another State, or byCitizens or Subjects of any Foreign State. U.S. Const. amend. XI.

The present suit is thus barred unless it falls within the exception announced by

the Supreme Court in Ex parte Young, 209 U.S. 123 (1908), which permits afederal court to issue prospective, injunctive relief against a state officer to

prevent ongoing violations of federal law, on the rationale that such a suit is not a

suit against the state for purposes of the Eleventh Amendment.Id. at 15960, 28

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S.Ct. 441. The requirement that the violation of federal law be ongoing is

satisfied when a state officer's enforcement of an allegedly unconstitutional state

law is threatened, even if the threat is not yet imminent. Waste Mgmt. Holdings,

Inc. v. Gilmore, 252 F.3d 316, 330 (4th Cir.2001) (citation omitted). The Ex parte

Young exception is directed at officers of the state [who] are clothed with some

duty in regard to the enforcement of the laws of the state, and who threaten andare about to commence proceedings ... to enforce against parties affected [by] an

unconstitutional act. Ex parte Young, 209 U.S. at 15556 (emphasis added).

Thus, we must find a special relation between the officer being sued and the

challenged statute before invoking the exception. Id. at 157, 28 S.Ct. 441;Gilmore, 252 F.3d at 331. This requirement of proximity to and responsibility

for the challenged state action, S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324,

333 (4th Cir.2008), is not met when an official merely possesses [g]eneralauthority to enforce the laws of the state, id. at 331 (citation omitted). The

special-relation requirement protects a state's Eleventh Amendment immunity

while, at the same time, ensuring that, in the event a plaintiff sues a state official

in his individual capacity to enjoin unconstitutional action, [any] federalinjunction will be effective with respect to the underlying claim.

Id. at 333. (emphasis added).

Also, as stated in in Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir.

2001):

Ex parte Youngrequires a special relation between the state officer sued and the

challenged statute to avoid the Eleventh Amendment's bar. Ex parte Young, 209

U.S. at 157. General authority to enforce the laws of the state is not sufficient tomake government officials the proper parties to litigation challenging the law.

Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th

Cir.1996) (internal quotation marks omitted). Thus, [t]he mere fact that a

governor is under a general duty to enforce state laws does not make him a properdefendant in every action attacking the constitutionality of a state statute. Shell

Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir.1979).

Here, although Governor Gilmore is under a general duty to enforce the laws of

Virginia by virtue of his position as the top official of the state's executive branch,

he lacks a specific duty to enforce the challenged statutes. Thus, we vacate thejudgment against him and remand with instructions that the district court dismiss

him as a defendant in this action. The fact that he has publicly endorsed and

defended the challenged statutes does not alter our analysis. The purpose of

allowing suit against state officials to enjoin their enforcement of anunconstitutional statute is not aided by enjoining the actions of a state official not

directly involved in enforcing the subject statute.

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TheEx parte Young exception to Eleventh Amendment immunity does not apply to either

defendant because they do not possess more than general authority to enforce the laws of the

State. Section 20-1-15 and art. XVII, 15 do not provide the Attorney General or the Governor

with any specific enforcement authority regarding those marriage provisions, nor do those

provisions even reference those officers or create any penal provisions for them to enforce. The

Attorney Generals general authority as the States chief prosecuting officer (S.C. Const. Art. V,

24;State v. Long, 406 S.C. 511, 753 S.E.2d 425 (2014) and as the chief law officer of the

State (State ex rel. Condon v. Hodges, 349 S.C. 232, 239, 562 S.E.2d 623, 627 (2002)) does not

give him proximity to and responsibility for the challenged state action so as to avoid the bar

of the immunity. McBurney, supra. Similarly, the Governors authority as chief Magistrate

(art. IV, 1) does not create for her a special relationship to the laws at issue and subject her to

theEx Parte Young exception.See Charleston Cnty. Sch. Dist. v. Harrell, 393 S.C. 552, 561, 713

S.E.2d 604, 609 (2011);2 Waste Management, supra. Certainly, neither Defendant has the

authority to issue a marriage license under state law to anyone or to grant recognition of

marriages entered out-of-State. 20-1-230 (judge of probate or clerk of court issues licenses).

A Virginia District Court, other than the one that consideredBostic, supra, recently relied

onMcBurney and Waste Management to reach a similar decision as to that states Governor in a

same-sex marriage case. Harris v. McDonnell, 988 F. Supp. 2d 603, 611 (W.D. Va. 2013). As

stated in that case, Virginia Governor's general supervisory authority over the Commonwealth's

executive branch does not constitute a special relation to the challenged same-sex marriage ban.

2 Nothing in School District's complaint demonstrates a nexus between Governor or his

authority and Act 189. Instead, School District only alleges that the Governor's ample executivepowers render him an appropriate defendant in any suit where the constitutionality of a statute is

challenged. This is an insufficient reason to name the Governor as a party defendant. Id.

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The Virginia Governor has insufficient proximity to and responsibility for Virginia's marriage

laws, and plaintiffs have not shown any involvement by the Governor in the enforcement of

these laws. Id.

Robicheaux v. Caldwell, 986 F. Supp. 2d 749, 752 (E.D. La. 2013), reconsideration

denied (Jan. 13, 2014), made a similar conclusion as to the Louisiana Attorney Generals

immunity. The Court found that [t]he Attorney General's sweeping responsibility to enforce the

laws of the State of Louisiana lacks the Ex parte Youngspecificity nexus between the Attorney

General and the alleged unconstitutional provisions that is essential to defeat sovereign

immunity.

These cases compel the same conclusion here. The Governor and the Attorney General

should be dismissed because they lack a special relation to the laws at issue so as to be subject to

the Ex Parte Young exception to immunity. They do not issue marriage licenses or enforce

license laws. Plaintiffs failed to sue any officials with such authority.

B

Plaintiffs Lack Standing To Sue the Defendants and, Therefore, this Court

Lacks Jurisdiction of this Case

For reasons similar to those discussed in the immunity section, supra, Plaintiffs lack

standing to sue the Defendants. As stated at an earlier stage of Oklahomas same-sex marriage

case:

Before we address the merits of [a] case, we must first determine whether the

federal district court, and likewise this court, has subject-matter jurisdiction overthe dispute.In re Aramark Leisure Serv's, 523 F.3d 1169, 1173 (10th Cir.2008).

Article III standing requires that a plaintiff allege an injury-in-fact that has a

causal connection to the defendant and is redressable by a favorable court

decision. . . . as

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Bishop v. Oklahoma, 333 F. App'x 361, 364 (10th Cir. 2009)(Bishop II); see also, Bishop

v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. Jan. 14, 2014).

In that case, the Tenth Circuit found a lack of standing of the Plaintiffs to sue the

Governor and the Attorney General regarding their claims:

Here, the Oklahoma officials' generalized duty to enforce state law, alone, is

insufficient to subject them to a suit challenging a constitutional amendment theyhave no specific duty to enforce. See Women's Emergency Network v. Bush, 323

F.3d 937, 949-50 (11th Cir.2003); see also Waste Mgm't. Holdings, Inc. v.Gilmore, 252 F.3d 316, 330-31 (4th Cir.2001) (concluding governor's generalduty to enforce the laws of Virginia insufficient when he lacks a specific duty to

enforce the challenged statutes); Okpalobi v. Foster, 244 F.3d 405, 422-25 (5th

Cir.2001) (en banc) (constitutional challenge to state tort statute against Governor

and Attorney General not viable under the Ex Parte Youngdoctrine because noenforcement connection existed between Governor or Attorney General and the

statute in question); 1st Westco Corp. v. Sch. Dist. of Phila., 6 F.3d 108, 112-13,

116 (3d Cir.1993) (If we were to allow [plaintiffs] to join ... [the State officials]in this lawsuit based on their general obligation to enforce the laws ..., we would

quickly approach the nadir of the slippery slope; each state's high policy officials

would be subject to defend every suit challenging the constitutionality of any statestatute, no matter how attenuated his or her connection to it.).

The Couples claim they desire to be married but are prevented from doing so, orthey are married but the marriage is not recognized in Oklahoma. These claims

are simply not connected to the duties of the Attorney General or the Governor.

Marriage licenses are issued, fees collected, and the licenses recorded by thedistrict court clerks. SeeOkla. Stat. Ann. tit. 28, 31; Okla. Stat. Ann. tit. 43, 5.

[A] district court clerk is judicial personnel and is an arm of the court whose

duties are ministerial, except for those discretionary duties provided by statute. In

the performance of [a] clerk's ministerial functions, the court clerk is subject tothe control of the Supreme Court and the supervisory control that it has passed

down to the Administrative District Judge in the clerk's administrative district.Speight v. Presley, 203 P.3d 173, 177 (Okla.2008). Because recognition ofmarriages is within the administration of the judiciary, the executive branch of

Oklahoma's government has no authority to issue a marriage license or record a

marriage. Moreover, even if the Attorney General planned to enforce themisdemeanor penalty (a claim not made here), that enforcement would not be

aimed toward the Couples as the penalty only applies to the issuer of a marriage

license to a same-sex couple. Thus, the alleged injury to the Couples could not be

caused by any action of the Oklahoma officials, nor would an injunction(tellingly, not requested here) against them give the Couples the legal status they

seek. [footnote omitted]

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Bishop II dismissed the claims against the Oklahoma Governor and Attorney General due to

lack of standing. Just as the plaintiffs in that case had no standing to sue the Oklahoman

Governor and Attorney General due to their lack of enforcement authority as to same-sex

marriage bans, the instant Plaintiffs lack standing to sue Governor Haley and Attorney General

Wilson. This suit should be dismissed against them due to lack of subject matter jurisdiction.

Bishop II.3

Although the standing problems for Plaintiffs, as parties, is that they cannot sue these

defendants, they also lack standing to assert the claims of third parties such as other same-sex

couples and children of such relationships. In order to maintain third-party standing, a plaintiff

must establish the following three requirements: (1) an injury-in-fact; (2) a close relationship

between the plaintiff and the person whose right is being asserted; and (3) a hindrance to the

third party's ability to protect his or her own interests. Miller v. MontgomeryCnty., Md., 458 F.

App'x 304, 310 (4th Cir. 2011). Plaintiffs fail to meet these requirements for other couples and

the children of such relationships, and they have not sought to bring a class action.

III

LEGAL HISTORY OF MARRIAGE LAW

The above grounds are dispositive of this case. Should this Court wish to consider the

other constitutional issues, the brief summary of the history of marriage law as an opposite sex

institution provides a good background for considering those questions.

3Kitchen v. Herbert,755 F.3d 1193, 1203 (10th Cir. 2014) reached a different conclusion as to

the Utah Governor and Attorney General, but is readily distinguishable from the instant case.The Court found that the Utah Governor and Attorney General had explicitly taken the position

. . . that they have ample authority to ensure that the Salt Lake County Clerk return[s] to her

former practice of limiting marriage licenses to man-woman couples in compliance with Utah

law. Id. 755 F. 3d at 1202. South Carolinas Attorney General and Governor do not have suchauthority over our Probate Judges who issue licenses and this action should be dismissed as to

them.

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A

Generally

For countless centuries, marriage has required both sexesuniting a man and a woman

as husband and wife to be father and mother to any children they produce. As David Hume

explained, "[t]he long and helpless infancy of man requires the combination of parents for the

subsistence of their young." David Hume, An Enquiry Concerning the Principles of Morals, in

Essays and Treatises on Several Subjects 421 (London, Millar 1758). John Locke likewise

understood marriage as made by a voluntary Compact between Man and Woman; and tho its

chief End, [is] Procreation; yet it draws with it mutual Support and Assistance, and a

Communion of Interests too, as necessary not only to unite their Care and Affection, but also

necessary to their common Off-spring, who have a Right to be nourished, and maintained by

them, till they are able to provide for themselves. 2 John Locke, Second Treatise of

Government: Of Civil Government 78, in The Works of John Locke Esq. 180 (London,

Churchill 1714). Noah Webster defined marriage as [t]he act of uniting a man and woman for

life; wedlock; the legal union of a man and woman for life, which is designed for securing the

maintenance and education of children. 2 Noah Webster, An American Dictionary of the

English Language (1st ed. 1828). As the Supreme Court noted long ago, marriage is the

foundation of the family and of society, without which there would be neither civilization nor

progress. Maynard v. Hill, 125 U.S. 190, 211 (1888). It is an institution more basic in our

civilization than any other. Williams v. North Carolina, 317 U.S. 287, 303 (1942). And because

it is structured for the procreation and protection of offspring, it is fundamental to the very

existence and survival of the [human] race. Zablocki v. Redhail, 434 U.S. 374, 384 (1978)

(quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)).

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B

IN SOUTH CAROLINA

The definition of marriage as an opposite sex legal relationship has been equally settled in South

Carolina since Colonial times. A 1712 statute made clear that only opposite sex marriages were

within the contemplation of the law in that it prohibited bigamy for persons marrying when they

had another husband or wife living (Statutes at Large, 1712, p. 508). (Attachment B). As set

forth in State v. Barefoot, 2 Rich. 209, 31 S.C.L. 209, 1845 WL 2580 (S.C. Ct. of Appeals 1845)

[b]y the common law, single men and women, being of the lawful age, that is, men of 14 and

women of 12 years of age, are left free to enter into the contract of marriage at their own

discretion. Barefootcites Blackstone, whose pre-revolutionary Commentaries on the Laws of

England (1765-1769) states that [t]he second private relation of persons is that of marriage,

which includes the reciprocal duties of husband and wife . . . . (Bk. 1, Ch. 15), The Laws of

Nature and Natures God, http://www.lonang.com/exlibris/blackstone/bla-115.htm4 The 1871

Revised Statutes forbade men from marrying various female relatives and in-laws and forbade

women from marrying various male relatives and in-laws. 1871 R.S. 440 (Attachment C).

Lucken v. Wichman, 5 S.C. 411, 413 (1874) stated that [t]he existence of a marriage is a

question of fact [w]hether founded on an express contract, or inferred from circumstances, which

necessarily imply that the relation of husband and wife existed between the parties . . . .

(emphasis added). Luckenwas cited inJohnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647,

4 This book and chapter ofBlackstone are cited in Vaigneur v. Kirk,2 Des. 640, 2 S.C. Eq. 640,

note a1,1808 WL 290 (Court of Chancery of S.C. 1808) for the purpose of resorting to the lawof England to ascertain what constitutes a legal marriage . . . in this country. It is plain from a

reading of Blackstone, which speaks of husband and wife, and his discussion of the common law

as applied to husband and wife, that by using terms like husband and wife or, its Norman French

equivalent, baron and feme, the understanding of English common law was that marriage was acontract entered into by a man and a woman. Rosengarten v. Downes, 71 Conn. App. 372,

384, 802 A.2d 170, 177 (2002).

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651 (1960) which stated that [i]t is essential to a common law marriage that there shall be a

mutual agreement between the parties to assume toward each other the relation of husband and

wife. Cohabitation without such an agreement does not constitute marriage.

Until very recently, the definition of marriage as being limited to an opposite sex couple

was entirely uncontroversial. The redefinition of marriage never became a serious point of

discussion until the Hawaii Supreme Court suggested the possibility in 1993. See Baehr v.

Lewin, 852 P.2d 44, 68 (Haw.), reconsideration granted in part, 875 P.2d 225 (Haw. 1993).

Samesex marriage has been a point of public discussion for less than a generationyet

plaintiffs insist that this new view of marriage is now embedded in our countrys founding

document.

Once Hawaii raised the issue, South Carolina joined the national discussion on the

meaning and definition of marriage. South Carolina adopted a statute and a Constitutional

provision that expressly addressed what had been the law in this State since it joined with twelve

other states to form the United States. See, footnote 1, supra.

These provisions did not change South Carolina law, but instead, ratified existing law.

They did not restrict same-sex couples other than by affirming that opposite sex marriage is the

only lawful domestic union. The law also specified the comity South Carolina would

extend to the licensing decisions of other Stateshardly a novel concept. Like every other

State, South Carolina routinely clarifies the extent to which it will recognize other States

licenses, ranging from licenses to carry weapons to professional licenses for doctors, lawyers,

and others. To avoid the circumvention of its licensing efforts, South Carolina has limited the

recognition that would be given to certain marriages in other states. Plaintiffs cannot avoid

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South Carolinas marriage licensing laws by means of a District of Columbia license. See, infra,

Full Faith and Credit argument.

IV

RATIONAL BASIS REVIEW SHOULD APPLY HERE TO PLAINTIFFS

DUE PROCESS AND EQUAL PROTECTION CLAIMS

If this Court dismisses this case on the above grounds, it need not reach this issue of

whether rational basis review should apply. Although Bostic applied strict scrutiny to its

analysis of the same-sex marriage claims in that case, the dissent in the 2-1 decision by Judge

Niemeyer applied rational basis review. Because the Defendants believe that Judge Niemeyers

opinion was the correct one, they offer his analysis to preserve this ground now and should

further review be sought later.

A

No Fundamental Right to Same-Sex Marriage Exists

Plaintiffs ask this Court to apply heightened scrutiny because it burdens the

fundamental right to marry and because it discriminates based on sex and sexual orientation.

Amended Complaint, 5; see also 29 and 38. Bostic applied strict scrutiny because it found

marriage to be a fundamental right that encompasses same-sex marriage. Judge Niemeyer

reached a different, legally correct conclusion.

As Judge Niemeyer stated:

To be clear, this case is not about whether courts favor or disfavor same-sexmarriage, or whether States recognizing or declining to recognize same-sex

marriage have made good policy decisions. It is much narrower. It is about

whether a State's decision not to recognize same-sex marriage violates the

Fourteenth Amendment of the U.S. Constitution. Thus, the judicial response mustbe limited to an analysis applying established constitutional principles.

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Bostic, 760 F.3d at 385.

He found fundamental flaws in the conclusion of the other two members of the Panel that

same-sex marriage is a fundamental right,

This analysis is fundamentally flawed because it fails to take into account that the

marriage that has long been recognized by the Supreme Court as a fundamental

right is distinct from the newly proposed relationship of a same-sex marriage.

And this failure is even more pronounced by the majority's acknowledgment thatsame-sex marriage is a new notion that has not been recognized for most of our

country's history. Ante at 376. Moreover, the majority fails to explain how this

new notion became incorporated into the traditional definition of marriage exceptby linguistic manipulation. Thus, the majority never asks the question necessary

to finding a fundamental rightwhether same-sex marriage is a right that is

deeply rooted in this Nation's history and tradition and implicit in the concept

of ordered liberty, such that neither liberty nor justice would exist if [it was]sacrificed. Glucksberg, 521 U.S. at 721, (quoting Moore v. East Cleveland, 431

U.S. 494, 503 (1977) (plurality opinion); Palko v. Connecticut, 302 U.S. 319

(1937)) (internal quotation marks omitted). . . .

760 F.3d at 386.

The substantive component of the Due Process Clause only protects

fundamental liberty interests. And the Supreme Court has held that libertyinterests are only fundamental if they are, objectively, deeply rooted in this

Nation's history and tradition, and implicit in the concept of ordered liberty,

such that neither liberty nor justice would exist if they were sacrificed. Glucksberg, 521 U.S. at 72021 (citation omitted) (quoting Moore, 431 U.S. at

503 (plurality opinion); Palko, 302 U.S. at 32526,). When determining whether

such a fundamental right exists, a court must always make a careful description

of the asserted fundamental liberty interest. Id. at 721, 117 S.Ct. 2258 (emphasisadded) (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1

(1993)). This careful description involves characterizing the right asserted in its

narrowest terms. .. .

Under this formulation, because the Virginia laws at issue prohibit marriage

between persons of the same sex, Va.Code Ann. 2045.2, the question beforeus is whether the liberty specially protected by the Due Process Clause includes

a right to same-sex marriage. Glucksberg, 521 U.S. at 723 . . . .

When a fundamental right is so identified, then any statute restricting the right issubject to strict scrutiny and must be narrowly tailored to serve a compelling

state interest. Flores, 507 U.S. at 302. Such scrutiny is extremely difficult for a

law to withstand, and, as such, the Supreme Court has noted that courts must be

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extremely cautious in recognizing fundamental rights because doing so ordinarily

removes freedom of choice from the hands of the people:

The plaintiffs in this case, as well as the majority, recognize that narrowly

defining the asserted liberty interest would require them to demonstrate a new

fundamental right to same-sex marriage, which they cannot do. . . .

Instead, the plaintiffs and the majority argue that the fundamental right to

marriage that has previously been recognized by the Supreme Court is a broad

right that should apply to the plaintiffs without the need to recognize a newfundamental right to same-sex marriage. They argue that this approach is

supported by the fact that the Supreme Court did not narrowly define the right to

marriage in its decisions inLoving, 388 U.S. at 12; Turner, 482 U.S. at 9496; orZablocki, 434 U.S. at 38386.

It is true that, in those cases, the Court did not recognize new, separate

fundamental rights to fit the factual circumstances in each case. For example, inLoving, the Court did not examine whether interracial marriage was, objectively,

deeply rooted in our Nation's history and tradition. But it was not required to do

so. Each of those cases involved a couple asserting a right to enter into atraditional marriage of the type that has always been recognized since the

beginning of the Nation-a union between one man and one woman. . . .

To now define the previously recognized fundamental right to marriage as a

concept that includes the new notion of same-sex marriage amounts to a

dictionary jurisprudence, which defines terms as convenient to attain an end.

[T]here are . . . significant distinctions between [same-sex and opposite-sex] the

relationships that can justify differential treatment by lawmakers.

Only the union of a man and a woman has the capacity to produce children and

thus to carry on the species. And more importantly, only such a union creates a

biological family unit that also gives rise to a traditionally stable political unit.Every person's identity includes the person's particular biological relationships,

which create unique and meaningful bonds of kinship that are extraordinarily

strong and enduring and that have been afforded a privileged place in politicalorder throughout human history. Societies have accordingly enacted laws

promoting the family unit-such as those relating to sexual engagement, marriage

rites, divorce, inheritance, name and title, and economic matters. And manysocieties have found familial bonds so critical that they have elevated marriage to

be a sacred institution trapped with religious rituals. In these respects, the

traditional man-woman relationship is unique.

Thus, when the Supreme Court has recognized, through the years, that the right to

marry is a fundamental right, it has emphasized the procreative and social

ordering aspects of traditional marriage. For example, it has said: [Marriage] is

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an institution, in the maintenance of which in its purity the public is deeply

interested, for it is the foundation of the family and of society, without which

there would be neither civilization nor progress, Maynard v. Hill, 125 U.S. 190,211 (1888) (emphasis added); Marriage is one of the basic civil rights of man.

Marriage and procreation are fundamental to the very existence and survival of

the race, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942); Itis not surprising that the decision to marry has been placed on the same level of

importance as decisions relating to procreation, childbirth, childrearing, and

family relationships.... [Marriage] is the foundation of the family in our society,Zablocki, 434 U.S. at 386.

Because there exist deep, fundamental differences between traditional and same-

sex marriage, the plaintiffs and the majority err by conflating the tworelationships under the loosely drawn rubric of the right to marriage. Rather, to

obtain constitutional protection, they would have to show that the right to same-

sex marriage is itself deeply rooted in our Nation's history. They have not

attempted to do so and could not succeed if they were so to attempt.

In an effort to bridge the obvious differences between the traditional relationship

and the new same-sex relationship, the plaintiffs argue that the fundamental rightto marriage has always been based on, and defined by, the constitutional liberty

to select the partner of one's choice. (Emphasis added). They rely heavily onLoving to assert this claim. In Loving, the Court held that a state regulationrestricting interracial marriage infringed on the fundamental right to marriage.

Loving, 388 U.S. at 12. But nowhere in Lovingdid the Court suggest that the

fundamental right to marry includes the unrestricted right to marry whomever onechooses, as the plaintiffs claim. Indeed, Loving explicitly relied on Skinner and

Murphy, and both of those cases discussed marriage in traditional, procreative

terms. Id.

This reading of Loving is fortified by the Court's summary dismissal of Baker v.

Nelson, [supra],just five years after Loving was decided. . . . . The Court's action

in context indicates that the Court did not view Lovingor the cases that precededit as providing a fundamental right to an unrestricted choice of marriage partner. .

. .The state regulation struck down in Loving, like those inZablockiand Turner,

had no relationship to the foundational purposes of marriage, while the gender ofthe individuals in a marriage clearly does. Thus, the majority errs, as did the

district court, by interpreting the Supreme Court's marriage cases as establishing a

right that includes same-sex marriage.

Bostic v. Schaefer, 760 F.3d at 389-93 (Niemeyer dissenting).

The misapplication ofLoving to find same-sex marriage is a significant error by the two

person majority in Bostic. As recognized by a New York Court before that states legislature

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legalized same-sex marriage, the historical background of Loving is different from the history

underlying . . . same-sex marriage. Hernandez v. Robles,7 N.Y.3d 338, 361, 855 N.E.2d 1, 8

(2006). Race was not a historical element of marriage. It was superimposed on marital law by

Jim Crow laws. Id. The prohibition on inter-racial marriage was plainly designed to maintain

White Supremacy. Id. The history of the traditional definition of marriage . . . is of a

different kind. Id. The idea that same-sex marriage is even possible is a relatively new one.

Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any

society in which marriage existed, that there could be marriages only between participants of

different sex. Id.

Judge Niemeyer found other barriers to the Virginia plaintiffs assertion of a fundamental

right:

The plaintiffs also largely ignore the problem with their position that if thefundamental right to marriage is based on the constitutional liberty to select the

partner of one's choice, as they contend, then that liberty would also extend to

individuals seeking state recognition of other types of relationships that Statescurrently restrict, such as polygamous or incestuous relationships. . . Under the

Glucksberg analysis that we are thus bound to conduct, there is no new

fundamental right to same-sex marriage. Virginia's laws restricting marriage toman-woman relationships must therefore be upheld if there is any rational basis

for the laws.

Bostic, 760 F.3d at 392, dissenting opinion (emphasis added). The same conclusion applies to

South Carolinas law.

B

Limiting marriage to the union of a man and a woman does not implicate a suspect class

requiring heightened scrutiny

Bostic did not address whether a suspect class was implicated by Virginias laws because

it found a fundamental right to same-sex marriage. Judge Niemeyer did address this issue and

found no suspect class implicated in that case and that rational basis review applied.

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Any laws based on such suspect classifications are subject to strict scrutiny. See

id. In a similar vein, classifications based on gender are quasisuspect and call

for intermediate scrutiny because they frequently bear[ ] no relation to abilityto perform or contribute to society and thus generally provide[ ] no sensible

ground for differential treatment. Id. at 44041, 105 S.Ct. 3249 (quoting

Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973)(plurality opinion)); see also Craig v. Boren, 429 U.S. 190, 197 (1976). Laws

subject to intermediate scrutiny must be substantially related to an important

government objective. See United States v. Virginia, 518 U.S. 515, 533 (1996).

But when a regulation adversely affects members of a class that is not suspect or

quasi-suspect, the regulation is presumed to be valid and will be sustained if the

classification drawn by the statute is rationally related to a legitimate stateinterest. City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249 (emphasis added).

The plaintiffs contend that Virginia's marriage laws should be subjected to some

level of heightened scrutiny because they discriminate on the basis of sexualorientation. Yet they concede that neither the Supreme Court nor the Fourth

Circuit has ever applied heightened scrutiny to a classification based on sexual

orientation. They urge this court to do so for the first time. Governing precedent,however, counsels otherwise.

In Romer v. Evans, the Supreme Court did not employ any heightened level ofscrutiny in evaluating a Colorado constitutional amendment that prohibited state

and local governments from enacting legislation that would allow persons to

claim any minority status, quota preferences, protected status, or discriminationbased on sexual orientation. Romer, 517 U.S. at 624. In holding the amendment

unconstitutional under the Equal Protection Clause, the Court applied rational-

basis review. See id.at 63133.

And the Supreme Court made no change as to the appropriate level of scrutiny in

its more recent decision in Windsor. . . .

Finally, we have concluded that rational-basis review applies to classifications

based on sexual orientation. See Veney v. Wyche, 293 F.3d 726, 73132 (4th

Cir.2002). . . . .The vast majority of other courts of appeals have reached the sameconclusion.

Bostic, 760 F.3d at 396-97 (Niemeyer dissenting).

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C

The Same-Sex Marriage Restrictions Do Not Discriminate on the Basis of Sex

Plaintiffs claim sex discrimination, but the Supreme Court

has never held that

classifications involving sexual orientation amount to sex discrimination. The traditional

definition of marriage treats both sexes equally, as men and women are equally free to marry

members of the opposite sex. No authority binds this Court to find sexual discrimination in

this case and apply a standard of review higher than rational basis. TheBostic opinions did not

address this issue substantively, and the Ninth Circuits decision is not controlling here. Latta

v. Otter, 14-35420, 2014 WL 4977682 (9th Cir. Oct. 7, 2014)(same-sex marriage prohibitions

also constitute sex discrimination).

The fundamental flaw with plaintiffs sex discrimination claim is that the marriage

laws are facially neutral; they do not single out men or women as a class for disparate

treatment, but rather prohibit men and women equally from marrying a person of the same

sex. Baker v. State, 744 A.2d 864, 880 n.13 (Vt. 1999). [T]here is no discrete class

subject to differential treatment solely on the basis of sex; each sex isequally prohibited

from precisely the same conduct. Id.

The Supreme Court has repeatedly upheld classifications that track biological

differences between the sexes. Distinctions based onpregnancy, for instance, are rationally

related to womens different reproductive biology. Geduldig v. Aiello, 417 U.S. 484, 495-

96 (1974) (equal protection) (later superseded by 42 U.S.C.A. 2000e(k) (West 2013)

(Pregnancy Discrimination Amendment)). And immigration law may make it easier for out-

of-wedlock children to claim citizenship from citizen mothers than from citizen fathers, for

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reasons beyond gender stereotypes. Nguyen v. INS, 533 U.S. 53, 62-65 (2001). As Justice

Kennedy wrote for the Court inNguyen:

To fail to acknowledge even our most basic biological differencessuch as the

fact that a mother must be present at birth but the father need not berisksmaking the guarantee of equal protection superficial, and so disservingit. . .

.The difference between men and women in relation to the birth process is a

real one, and the principle of equal protection does not forbid Congress to

address theproblem at hand in a manner specific to each gender.

533 U.S. at 73 (2001).

Under South Carolina law, both sexes are equally free to marry. They do not

discriminate on the basis of sex, and therefore, rational basis review applies.

V

SOUTH CAROLINAS LONGSTANDING DEFINITION OF MARRIAGE

SATISFIES RATIONAL BASIS REVIEW UNDER THE EQUAL PROTECTION AND

DUE PROCESS CLAUSES

Under Judge Niemeyers analysis that no fundamental right is involved, rational basis

review applies to Plaintiffs due process claims. See Colon Health Centers of Am., LLC v. Hazel,

733 F.3d 535, 548 (4th Cir. 2013)(citing Glucksberg). For that same reason and because

Plaintiffs are not part of a suspect class, rational basis review applies to their equal protection

claims. Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073, 2080 (2012).

A

Rational Basis Review Is Extremely Deferential

Rational basis review is a paradigm of judicial restraint. FCC v.Beach Commcns, Inc.,

508 U.S. 307, 313-14 (1993). [J]udicial intervention is generally unwarranted no matter how

unwisely we may think a political branch has acted. Vance v. Bradley, 440 U.S. 93, 97

(1979). The laws must be upheld if there is any reasonably conceivable set of facts that could

provide a rational basis for the classification between opposite-sex couples and same-sex

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couples. Heller v. Doe, 509 U.S. 312, 319 (1993) (quoting FCC v. Beach Commcns, Inc., 508

U.S. 307, 313 (1993)).

B

Rational Bases Exist for South Carolinas Marriage Laws

In her opinion concurring in Lawrence v. Texas, 539 U.S. 558, 585 (2003),

regarding the Texas statute prohibiting sodomy between homosexuals, Justice

OConnor strongly indicated that marriage laws would withstand a challenge from

same-sex couples. She stated as follows:

That this law as applied to private, consensual conduct is unconstitutionalunder the Equal Protection Clause does not mean that other laws

distinguishing between heterosexuals and homosexuals would similarly fail

under rational basis review. Texas cannot assert any legitimate state interest

here such as . . . preserving the traditional institution of marriage. Unlike the

moral disapproval of same-sex relationsthe asserted state interest in this

caseother reasons exist to promote the institution of marriage beyond mere

moral disapproval of an excluded group. (emphasis added).

539 U.S. at 585. Numerous legitimate state interests support South Carolinas

limitation of marriage to opposite-sex couples.

In Bostic,Virginia offered the following grounds as support for its same-sex marriage

ban:

(1) Virginia's federalism-based interest in maintaining control over the definition

of marriage within its borders, (2) the history and tradition of opposite-sex

marriage, (3) protecting the institution of marriage, (4) encouraging responsibleprocreation, and (5) promoting the optimal childrearing environment

Bostic, 760 F.3d at 378. Although rejected by the Court of Appeals under strict scrutiny, these

grounds support South Carolinas law under rational basis review. Respectfully disagreeing with

the two person majority opinion in Bostic, we also submit that the grounds would pass a strict

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scrutiny test if applied because they are compelling state interests and are narrowly drawn. 760

F.3d at 377.

Judge Niemeyer analyzed these grounds for Virginias law under a rational basis standard

and his conclusions apply here. He stated:

Virginia has undoubtedly articulated sufficient rational bases for its marriage laws, and I

would find that those bases constitutionally justify the laws. Those laws are grounded onthe biological connection of men and women; the potential for their having children; the

family order needed in raising children; and, on a larger scale, the political order resulting

from stable family units. Moreover, I would add that the traditional marriage relationshipencourages a family structure that is intergenerational, giving children not only a

structure in which to be raised but also an identity and a strong relational context. The

marriage of a man and a woman thus rationally promotes a correlation between biological

order and political order. Because Virginia's marriage laws are rationally related to itslegitimate purposes, they withstand rational-basis scrutiny under the Due Process Clause.

Bostic, 760 F.3d at 395 (4th Cir. 2014). South Carolinas laws serve similar purposes.

Maynard, Meyer and Skinner, supra, imply that a purpose of marriage is to encourage

potentially procreative couples to raise children produced by their sexual union together.

Marriage was not born of animus against homosexuals but is predicated instead on the positive,

important and concrete societal interests in the procreative nature of opposite-sex relationships.

Only opposite-sex couples can naturally procreate, and the responsible begetting and rearing of

new generations is of fundamental importance to civil society. It is no exaggeration to say that

[m]arriage and procreation are fundamental

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